IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joy L. Baird, et al., :

:

Plaintiffs, :

:

v. : Case No. 2:11-cv-634

:

: Magistrate Judge Kemp

Unum Group, et al., :

:

Defendants. : 

:

ORDER

This case is before the Court to consider a motion to remand

filed by plaintiffs Joy L. Baird and Jack H. Baird. For the

reasons that follow, the motion to remand will be denied. 

I. Introduction

The Bairds brought this action in the Madison County Court

of Common Pleas asserting claims under the Employee Retirement

Income Security Act of 1974 (“ERISA”). Defendants Unum Life and

Unum Group (collectively “UNUM”) removed the case from state

court to this Court on July 18, 2011, based on federal question

jurisdiction. 

The Bairds then moved to remand this case to state court.

Their sole argument is that the state court and this Court have

“concurrent jurisdiction over the subject matter of this action

and Plaintiffs have properly elected to file their action in the

Court of Common Pleas...” 

In its responsive memorandum, UNUM argues that the fact that

courts share concurrent jurisdiction is of no consequence in

removal analysis and that if a federal question- even one over

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is present, removal is proper and remand is inappropriate. For

the reasons that follow, this Court agrees.

II. Discussion

29 U.S.C. §1132 authorizes an ERISA plan beneficiary to file

a civil action to recover benefits due under an ERISA plan. 29

U.S.C. §1132(a). ERISA gives state courts and United States

District Courts concurrent jurisdiction over such actions. 29

U.S.C. §1132(e)(1). The Bairds’ complaint seeks disability

insurance benefits under an employee welfare benefit plan covered

by ERISA. See 29 U.S.C. §1002(1). Although the complaint does not

specifically cite to ERISA, the Bairds do not dispute that ERISA

preempts any state law claims they may have and replaces them

with a claim based on federal law, i.e. §1132. See Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58 (1987). 

The removal statute, 28 U.S.C. §1441(a), provides in

pertinent part as follows: 

[A]ny civil action brought in a State court 

of which the district courts of the United

States have original jurisdiction, may be

removed by the defendant or the 

defendants . . . .

This Court has original jurisdiction over federal question

actions pursuant to 28 U.S.C. §1331. Consequently, the text of

the removal statute plainly supports the removal of this case. 

There is no statutory or case law supporting the Bairds’

position that if concurrent jurisdiction exists, this Court can

or should remand the case to state court. Rather, the cases

uniformly hold that the “mere existence of concurrent

jurisdiction, standing alone, is not a sufficient reason to

remand an otherwise removable action.” Nesbitt v. Bun Basket,

Inc., 780 F.Supp 1151, 1153 (W.D. Mich. 1991), citing Aben v.

Dallwig, 665 F. Supp. 523, 525 (E.D. Mich. 1987). See also

Obeid v. Meridian Automotive Systems, 296 F.Supp.2d 751, 753 n. 1

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(E.D.Mich. 2003) (stating that concurrent jurisdiction is of no

consequence in the removal analysis); Kabealo v. Davis, 829

F.Supp. 923, 927 (S.D.Ohio 1993) (stating that the fact that

federal and state courts have concurrent jurisdiction does not

provide a basis for defeating defendants’ right to remove the

action to federal court); Broom v. TRW Credit Data, 732 F. Supp.

66, 69 (E.D. Mich. 1990)(noting the grant of concurrent

jurisdiction alone was insufficient to defeat the right of

removal granted under 28 U.S.C. §1441).

III. Conclusion

Because the Bairds’ claims are to recover benefits due under

an ERISA plan, and because this Court shares concurrent

jurisdiction with state courts over such claims, this case was

properly removed. The Bairds have cited to no statutory basis for

remand and there is no case law favoring their argument. Their

motion to remand (#8) is therefore denied. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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